14 Mass. 296

September, 1817

HAMPSHIRE, &c. County


An inhabitant of another state is a competent witness in the trial of an action to which such state is a party.

One who takes a conveyance of land, knowing that the grantor had previously conveyed it to another, cannot hold it against the first purchaser, although the first conveyance be not recorded. But if the second purchaser produces his deed to be recorded before the other, and then sells the land bona fide, and for a valuable consideration, to a person wholly ignorant of those circumstances, the latter will hold the land against the first purchaser; and this whether the conveyances be conditional by way of pledge, or absolute.

This was a writ of entry sur disseisin, which was tried upon the general issue before Putnam, J., at the sittings here after September term, 1815. To maintain the issue on the part of the demandants, they gave in evidence a deed of mortgage, made to them of the demanded premises on the 9th of February, 1802, by one Seth Clark, conditioned to pay his bond to them of that date for 1000 dollars, with interest in one year, acknowledged and recorded on the day of its date. The said bond was also produced. The interest appeared to have been paid to the 2d of September, 1807.

They also gave in evidence another mortgage deed for the same debt, made to them on the 6th of October, 1807, by one Laban Thurber, conditioned for the payment of 1000 dollars, on demand, with interest from the 2d of September preceding; and a bond of said Thurber for the said sum, payable to them as aforesaid. The said mortgage deed was acknowledged, and it was recorded on the 9th of April, 1808.

The tenant claimed under J. & H. Dwight, mortgagees of said

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Thurber, and produced a deed from Thurber to said Dwights, dated the 7th of April, 1808, acknowledged on the same day, and recorded on the 8th of the same April, conditioned for the payment of several promissory notes from the said Thurber to the said Dwights, which were also produced; also an assignment from them to the tenant in due form of law, dated the 15th of April, 1809, acknowledged and recorded; also a copy of a deed of release, from the demandants to said Clark, of their right in the premises, referring to the first mortgage. This release was dated the 6th of October, 1807, and acknowledged; and it was recorded on the 9th of April, 1809.

The demandants offered A. Kingsbury, Esq., the treasurer of the state of Connecticut, as a witness; and he was admitted, the tenant objecting. They also offered a letter from the said Dwights to the said Kingsbury, as evidence that the said Dwights knew of the mortgage of the said Thurber to the demandants before Thurber's deed was made to the said Dwights; which letter was admitted, notwithstanding the objections of the counsel for the tenant. There was no evidence offered that this was an original letter, excepting the testimony of said Kingsbury, that it was the same which he received in answer to one which he had addressed to them; and no notice was proved to have been given to the said Dwights, or to the tenant, to produce the original letter from said Kingsbury to them; but no fraud in respect to the letter was suggested.

The judge instructed the jury that the tenant was in no better condition than the Dwights, his assignors; that if, from the evidence in the case, they were satisfied that the Dwights knew of Thurber's mortgage to the demandants, before they took their mortgage from Thurber, the demandants were entitled to a priority, and to recover in this action; otherwise that the tenant ought by law to prevail.

A verdict was given for the demandants. But if the said Kingsbury ought not to have been admitted as a witness, or the letter of the said Dwights to him ought to have been rejected, or the direction to the jury was wrong, a new trial was to be granted; otherwise judgment was to be rendered upon the verdict.

The cause was argued, at the last September term, by Bliss and Strong for the demandants, and Ashmun and Mills for the tenant.

For the tenant it was contended that Kingsbury was an incompetent witness. He was directly interested in the event of the suit, and, indeed, was a party to it. It is of no importance that his interest was minute. One man's mind may be influenced by a motive that would be perfectly inoperative upon another's. It is

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therefore that the rule is absolute, that no person interested in a suit shall be a witness. A case in 2 Lev. 231 seems opposed to this doctrine. But there the witness was admitted on account of the remoteness of his interest, not on account of the smallness of it; and Buller doubts whether that case be law. [Note p296-1]

The practice of our own courts has conformed to this principle; members of corporations, parties to a suit, having always been rejected as witnesses, without any reference to the amount or value of their interest; and a statute was found necessary to change the law in this regard, as it related to inhabitants of towns and parishes. [Note p296-2] In England, also, several statutes have been made, to alter this rule of the common law, and to permit corporators to be witnesses in certain cases.

In the present case, there was no necessity for Mr. Kingsbury to testify, since, with the use of ordinary diligence, other witnesses might have been obtained of the facts testified by him, if true.

The letter of Messrs. Dwights was not admissible evidence, without other and better proof of its authenticity. The witness was not in the habit of corresponding with them, and, indeed, had never seen their hand-writing: his testimony, then, on this point was of no effect. If the letter was genuine, there must have been other means of proving it, in the power of the demandants, less objectionable than the one they used.

The tenant is not exactly in the place of the Dwights. He purchased bond fide, and for a valuable consideration. Their knowledge of the prior conveyance ought not to affect him. [Note p296-3] A fair purchaser of an absolute estate without notice is protected; and there appears no reason for a different principle in cases of mortgage.

The counsel for the demandants (being informed by the Court that they need not argue the competency of Mr. Kingsbury as a witness) contended that the letter of the Dwights was competent evidence; and it was well left to the jury to judge of its genuineness and effect. Since it was received by mail, in answer to one written to them by Kingsbury, it furnished a legal presumption that Kingsbury's letter, giving notice of Thurber's mortgage, had been received by them. It was not necessary to prove their hand-writing, since, for the purpose for which the letter was introduced at the trial, a letter written by their order would have had the same effect. There

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was no necessity of notice to produce Kingsbury's letter. It was not in the keeping of the tenant, and the Dwights were not parties nor witnesses. [Note p299-1]

The tenant can be in no better plight than the Dwights, his assignors. He cannot be said to have purchased without notice of a prior encumbrance. Thurber's mortgage to the demandants was on record more than a year before the assignment of the Dwights to him: he ought to have seen this, and should have been put on his guard. [Note p299-2]

The cause was continued nisi, and at the last April term here the opinion of the Court was pronounced by Jackson, J. As to the first point, we see no sufficient objection to Mr. Kingsbury as a witness. The case of one sovereign becoming a party in the judicial courts of another is novel, and perhaps wholly unknown in the common law. But we constantly find the sovereign, both here and in Great Britain, a party in suits in their own courts; and it was never imagined that all the citizens or subjects of the government were incompetent witnesses in such suits because the government might be enriched by them.

As to the letter of J. & H. Dwight, which was read in evidence, it is not very important to consider the question; because, on the new trial, which must be had in this case, one or the other of the parties can undoubtedly produce such evidence as will put it out of doubt. It appears, however, to us, that the letter was properly admitted at the trial, upon the evidence that was then offered of its authenticity.

The third is the most important point in this case; and upon that we are, on the whole, satisfied that there ought to be a new trial. A person who takes a conveyance of land, with knowledge that the grantor had previously conveyed it to another, cannot hold it against the first purchaser, even though the first conveyance is not recorded. It would be fraudulent in him to attempt thus to deprive the purchaser of the fruits of his contract. If the grantor can be considered as having any title or estate after the first conveyance, it is merely the legal estate which he holds in trust for the first purchaser; and the second, purchasing with knowledge of the trust, shall hold subject to the same trust. But if the second purchaser procures his deed to be recorded before the other, and then sells the land bona fide, and for a valuable consideration, to a person wholly ignorant

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those circumstances, the latter will hold the land against the first purchaser.

If this were not so, our laws, which require the registering of deeds, would be useless, if not worse; because a purchaser, after the most thorough examination in the registry of deeds, and finding a succession of conveyances, all in legal form and in perfect order, might still be evicted upon proof of a secret trust, or a fraud, on the part of some former owner.

We can see no difference in the application of these principles, when the conveyances are absolute, and when they are made as a pledge or security for a debt. A mortgage furnishes no security for a debt unless it enables the grantee to hold the land absolutely, if the debt is not paid, in the same manner as he would have held it if the original conveyance had been without condition.

The question in this case has no connection with the principles which regulate the assignment of a chose in action. If Thurber had given a bond to the Dwights, with a mortgage to secure it, and the Dwights, before their assignment to Bradish, had received payment of the bond, or had given a defeasance of it, Bradish, as assignee, would be bound by those acts, although they had been wholly unknown to him. This is the whole effect of the case of Clute vs. Robison, which was cited in the argument. It is true that, if by any such defence the assignee is prevented from recovering the money appearing to be due on the bond, he will also lose all benefit from the mortgage. But this arises, not from any defect in the title to the land, or in the manner of conveying it, considered by itself; but is only an incidental consequence of the discharge or avoidance of the bond for which the land is pledged.

So, if the notes given by Thurber to the Dwights had been overdue at the time of the assignment, Bradish would have taken the notes, subject to any defence that could be made to them by Thurber; and if such a defence should prevail, it would virtually defeat and avoid the mortgage in the hands of Bradish. But if the money expressed in the notes is due, and payable to Bradish, by force of the assignment to him, the question whether he shall hold the land as security for that money must be decided like any other question relating to the same land.

The only case cited in the argument, which seems to militate with our opinion upon this point, is that of Walley vs. Walley & Al., in 1 Vern. 484. This case is cited by Powell on mortgages, as showing that the assignee of a mortgage will be affected by notice to the assignor of an outstanding title to the land mortgaged, and will take subject to that title. The case furnishes no authority to that point. It was proved that the assignee,

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at the time of the assignment, had actual notice of the outstanding title, and therefore this question could not arise; and accordingly it is not noticed in the opinion of the court. It was, indeed, contended in that case, by the counsel for Warner, one of the defendants, that, although it was proved that he had notice of the outstanding title, yet that it did not appear that his assignor (Gandy, another defendant) had such notice. To this it was answered, by the counsel for the plaintiff, that, as Warner had purchased with full notice, he could not defend himself as an innocent purchaser; and that, if he would mend his case on the pretence that Gandy, his assignor, had no notice, he must stand in Gandy's place; and then the confession of Gandy, (in his answer to the same bill,) that he had notice, would bind Warner. This argument of the plaintiff's counsel, if it had been adopted by the court, would by no means prove that if Warner had had no notice himself, and was defending himself as an innocent purchaser, he would be affected by such notice to his assignor.

It was further said, in the argument of the case at bar, that the deed under which the demandants claim being registered before the assignment to Bradish, although after the conveyance to the Dwights, Bradish might and ought to have known that there was a prior conveyance.

This is at most only evidence to show that Bradish did know the fact; and if, from this or any other legal evidence, the jury should find that he did know it, his title would be void as against the demandants; or rather his mortgage would be postponed to theirs.

But we certainly cannot say that he shall be presumed, from this circumstance, to know of the prior conveyance.

When a purchaser is examining his title in the registry of deeds, and finds a good conveyance to his grantor, he is not expected to look further. This case, it is true, presents the question in a very strong point of view for the demandants; as Bradish had only to look to the registry for the next day, and perhaps only to the next page, to discover this prior conveyance to the demandants. But if he is required to look one day, or one page, beyond that which exnibits the title of his grantor, it will be impossible to say where the inquiry shall stop. The verdict is set aside, and a

New trial granted, [Note p301-1]


[Note p296-1] Bull. N. P. 290.

[Note p296-2] Stat. 1792, c. 32.

[Note p296-3] 1 New Rep. 332, Doe vs. Martyn. - 10 Johns. 135, Jackson vs. Henry. - 2 Mass. Rep. 506, Norcross, Ex., vs. Widgery. - 4 Mass. Rep. 637, Farnsworth vs. Childs.

[Note p299-1] Peake's L. of Ev. Appendix, 40. —1 Esp. Rep 326, Lord Barrymore vs. Taylor — 3 Esp. Rep. 64, Runquist vs. Ditchell.

[Note p299-2] Powell on Mortgage, 601, 602, cites 1 Vern. 484.-2 Johns. 595, Clute vs. Robison.

[Note p301-1] [Somes vs. Brewer, 2 Pick. 184 . - Hall vs. Bigelow, 16 Mass. Rep. 406 - Ed.]